Judicial Conduct Tribunal highlights contested gendered and cultural understandings of emojis
Much is invested in the process and outcome of the Judicial Conduct Tribunal of Judge President of the Eastern Cape, Selby Mbenenge.
This week, postponing the tribunal until 30 June, the chair, retired judge Bernard Ngoepe, repeated evidence leader advocate Salomé Scheepers' statement at the start of proceedings in February that the matter was 'unprecedented in the history of South Africa'.
The complainant, 40-year-old legal secretary Andiswa Mengo, has accused the head of the Eastern Cape Division, Judge President Selby Mbenenge, 63, of sexually harassing her in a series of WhatsApps in 2021.
At her side is formidable advocate Nasreen Rajab-Budlender, while Mbenenge has advocates Muzi Sikhakhane and Griffiths Madonsela in his corner. Both men, too, are formidable, but in quite a different fashion.
Complicating matters are completely divergent views on gendered, linguistic and cultural understandings of a range of emojis, from eggplants to peaches, from a dripping syringe to 'pervy' eyes, that shot between the Judge President and the legal secretary.
Power dynamics
Most professional workplaces in South Africa have protocols and principles governing the role of leadership in hierarchical structures. This is something Rajab-Budlender has pointed out from the start.
Yet this obvious power imbalance appears not to have moved Mbenenge's legal representatives, who have argued that Mengo had agency. They objected to proposed evidence to be presented by gender expert Dr Lisa Vetten, questioning its relevance.
On Tuesday, Ngoepe ruled that Vetten would be allowed to testify and that he would 'rather err on the side of caution'. The tribunal could decide afterwards whether it was indeed relevant, he said.
Language in pictures
Last week, forensic linguist Dr Zakeera Docrat gave expert testimony with regard on the contexts of the WhatsApps between the Judge President and Mengo and the meaning of emojis.
The YouTube transmissions of the tribunal have been marked 'GRAPHIC CONTENT' as a pre-warning to those watching the live proceedings online.
Docrat had testified that Mbenenge's use of a banana, peach, eggplant and dripping syringe emojis had 'sexual connotations' and indicated that he wanted to be intimate with her.
'This was not a discussion about vegetables.'
Docrat, who speaks, reads and understands isiXhosa, testified that Mbenenge's advances were unwanted and Mengo's responses – often featuring 'hysterical laughing' and 'embarrassed monkey' emojis – were because she did not know how else to react to his advances as he was her boss.
Mbenenge, through his counsel, has admitted sending some of the messages and claims the relationship had been consensual. However, he has denied sending her a picture of his penis or asking her for oral sex in his chambers.
The outcome of this tribunal will send a message to women and men about working rights in professional circumstances. In a country plagued by misogyny and patriarchal proprietary inclinations, the ruling must protect those with less agency. DM
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Eastern Cape judge president Selby Mbenenge. (Office of the Chief Justice/ S Lioners) It is a well-known cook's trick to salt brinjals before cooking them — the salt releases the water and allows the brinjals to absorb the flavour of the intended spice. The evidence led at the Judicial Conduct Tribunal in May and June 2025 into the raunchy chain of WhatsApp messages between Eastern Cape High Court Judge President Selby Mbenenge and court secretary Andiswa Mengo reminds me of this process. The tribunal is grounded in a sexual harassment matter that Mengo launched in January 2023 with the Judicial Conduct Committee. Counsel on both sides sought to enlist expert testimony on intimate WhatsApp emojis, hauling them into the public space and rubbing salt into the outwardly salacious combinations of text requests and brinjal emojis to release their underlying meaning. 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The Oxford English Dictionary defines cultural relativism as the theory where beliefs, customs and morality exist only in relation to the particular culture in which they originate and are therefore not absolute. This theory creates a direct tension with the concept of universal rights, the Freedom Charter and the Bill of Rights that our Constitution and our society is founded on. As lawyers, we try to focus our arguments on what is appropriate or not by aligning them with the precepts of what justice should look like in a free, impartial and equal society. Anything else risks circular arguments on whose culture trumps the others' and who bears the most harm sacrificially to the trump. Justice, according to John Rawls in his seminal book A Theory of Justice, comprises the principles that free and rational persons agree to when they are all placed in the original position — behind a veil of ignorance where there is no class, no race, no gender, no knowledge of their abilities, intelligence, strengths nor even the conception of good. Justice is also popularly depicted as a blindfolded woman holding perfectly balanced scales. Underlying the notion of blind justice would be the ways in which appropriate behaviour gives effect to justice. In society, laws are one way of regulating behaviour. Cultural norms represent another. And this is where the difficulty lies. Our legal system has, since 1994, has represented a contextual typology. This is intentional. It can give effect to the type of justice that is aspirational of blind goodness, rooted in the Constitution, while at the same time remaining acutely aware of the context of inequality created through the legally enforced system of apartheid. So, the constitutional court's judgments have tended to view context and the distribution of justice through this lens. And so, further, it can be argued that the law is mostly blind within a given human and social context. And that context is left in the hands of the human-in-the-loop — the expert judges in whom we have placed our trust to interpret our laws against the bedrock of universal rights so that the good is maximised. Would cultural norms have the same gravity? What if some cultural norms enforce behaviour that does not maximise the good and instead promotes harm, that is not acceptable in society today? Honour killings in rural, tribal Pakistan; female genital mutilation in tribal North Africa; teen pregnancies by sugar daddies in South Africa all contain elements of cultural norms and societal acceptance. All cause harm. If we are to argue that justice should mostly be blind and impartial, while maximising the good, then should the argument on culture not take a back seat to the laws in place to regulate appropriate behaviour? In trying to be as agnostic as possible on what justice should look like, an AI tool to discern appropriate behaviour in a workplace might prove useful to an appointed judicial arbiter on such cases. If the tool is built on the framework of existing harassment legislation, like the Employment Equity Act and the 2022 Harassment Code, it could benchmark the definition of misconduct against tested workplace behaviour. The Harassment Code begins its definition of harassment as 'unwanted conduct that impairs dignity'. It could then be applied against a dedicated, unique dataset derived from decided case law to extract the scraped data. This evaluation could take into account further datasets in mitigating risky scraping by the tool in the form of human intervention. Humans could input into the tool's decision-making process by building parameters of conduct on what is appropriate and what is not in a workplace. By also adding a predictor indicator on consent — forms of consent and what they look like — the tool's evaluation could be bolstered. The results could prove startling. Unwanted harassment in the workplace could then be tested against the legal definition in a tool that is designed to scrape from a closed dataset of prior decided cases on harassment conduct, benchmarked against human inputs on parameters and consent. In simple terms, a chain of WhatsApp messages could be uploaded into the tool, which would churn out an expression of harassment, tested against a consent indicator, as a probability percentage. It would convert an expression of legislative intervention into an automated probability — translating the likelihood of harassment into a barometer. It could also be styled to perform a similar task with user prompts on other types of conduct, besides WhatsApp messages, that could be uploaded for evaluation, ChatGPT-style. A tool like this could be a game-changer. Responsible AI guidelines from current international best practices dictate that it would need to include: Clear, targeted ethical prompts; Guardrails with interventions to ensure responsible framing of the prompts; Defined databases, so that scraping is ethical and accurate. For example, the database could include examples from decided cases on what type of conduct constitutes harassment, what 'unwanted' means, how 'no' has been conveyed before, how not saying 'no' has been conveyed, how many actions make conduct unwanted etc; and Ensuring that the model inputs are overseen by humans-in-the-loop who can intervene and mitigate risk of error and biases. Crisp, blind, without obfuscation and without relativism, the tool could flag risky behaviour and work at prompting more appropriate behaviour and, in doing so, shift norms in the workplace and between genders. Could it be that simple? There are obvious hazards. Context is one. I can hear lawyers vociferously arguing against a blunt and crass tool such as this one to weed out errant, inappropriate behaviour. I can see the potential for error, for over-simplification and for binary results. For deriding the human value in judgments and for reducing complicated evaluations to crass AI tools. 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Not such a big jump now, is it? Luthfia Kalla is an anti-corruption compliance lawyer with a special interest in ethics and following the (illicit) money.
